Posts tagged "Almeida"

Almeida, et al. v. Arruda, et al. (Lawyers Weekly No. 11-032-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-292                                        Appeals Court   JILLIAN ALMEIDA & others[1]  vs.  ANTONIO ARRUDA & others.[2] No. 15-P-292. Bristol.     January 12, 2016. – March 18, 2016.   Present:  Kafker, C.J., Cohen, & Blake, JJ. Alcoholic Liquors.  Zoning, Nonconforming use or structure.     Civil action commenced in the Superior Court Department on October 18, 2011.   The case was heard by Robert J. Kane, J.     Marc R. Deshaies for the plaintiffs. Walter Fraze, Jr., for Antonio Arruda and another.     KAFKER, C.J.  This appeal arises from a dispute over the addition of beer and wine sales at a convenience store in the town of Westport.  The store, owned by Antonio and Darlene Arruda (collectively, Arrudas) and located on land that is currently zoned as residential, operates as a lawful, preexisting nonconforming use pursuant to G. L. c. 40A, § 6.  The Arrudas sought a finding by the zoning board of appeals of Westport (board) allowing the sale of beer and wine at the store.  The board voted unanimously in favor of the Arrudas on the ground that the addition of beer and wine sales to the store’s preexisting nonconforming use is not substantially more detrimental to the neighborhood.  The plaintiffs, abutters to the store, appealed pursuant to G. L. c. 40A, § 17.  After a bench trial, a Superior Court judge affirmed the board’s decision, finding that the sale of beer and wine was neither a “substantial change” in use nor a “detriment to the neighborhood.”  Judgment entered and the plaintiffs appealed.  We affirm. Background.  The convenience store is located on land that is currently zoned for residential use.  The Arrudas purchased the store in 2005, at which time it presumably was operating as a lawful nonconforming use under G. L. c. 40A, § 6.[3]  The store was within commonly owned commercial space that also contained a beauty shop and an insurance company.  In 2006, the Arrudas sought permission from the board to enlarge the convenience store by encapsulating the space then reserved for the beauty shop and the insurance company.  The Arrudas also sought permission to sell beer and wine at the store.  After a public hearing, the board granted permission for the store’s expansion but denied permission to sell beer and wine.  Apparently no one appealed the board’s decision. In September, 2011, the Arrudas leased the store to Lino Rego while maintaining ownership of the property.  The Arrudas […]

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Posted by Massachusetts Legal Resources - March 18, 2016 at 3:43 pm

Categories: News   Tags: , , , ,

Commonwealth v. Almeida (Lawyers Weekly No. 10-055-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11486   COMMONWEALTH  vs.  DANIEL D. ALMEIDA.     March 21, 2014.   Sex Offender.  Constitutional Law, Sex offender.  Due Process of Law, Sex offender, Substantive rights.  Evidence, Sex offender.  Practice, Civil, Sex offender, Findings by judge.  Words, “Menace.”         Following a jury-waived trial, a judge in the Superior Court determined that the defendant is a sexually dangerous person and committed him to the Massachusetts Treatment Center pursuant to G. L. c. 123A, § 14 (d).[1]  The judge concluded that the defendant suffers from a mental abnormality that manifests itself in behavior including voyeurism and exhibitionism, and that the defendant is reasonably likely to reoffend by engaging in those same types of behaviors in the future.[2]  As the judge noted, the defendant’s sexual offenses are noncontact offenses.  He nonetheless concluded that the defendant is likely to engage in sexual offenses in the future “to a degree that makes him a menace to the health and safety of other persons” if he is not confined to a secure facility.  The judge also concluded that civil commitment on this basis did not violate the defendant’s substantive due process rights.  The Appeals Court affirmed, see Commonwealth v. Almeida, 83 Mass. App. Ct. 451 (2013), and we granted the defendant’s application for further appellate review.   At the time of the defendant’s trial, this court had not yet decided Commonwealth v. Suave, 460 Mass. 582 (2011) (Suave), in which we considered, for the first time, “whether G. L. c. 123A, properly construed, permits a finding of sexual dangerousness based on an individual’s history of committing noncontact sexual offenses and his likelihood of committing only noncontact offenses in the future.”  Id. at 585-586.  We concluded that it could, and, on the issue whether a defendant is a “menace,” stated that “the Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.  A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.”  Id. at 588.  We ultimately held in the Suave case that the defendant’s past and predicted future sexual behavior did not support a finding that he was a menace.  Id. at 589.  The Suave case thus does not itself provide an example of a defendant who was found to be sexually dangerous on the basis […]

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Posted by Massachusetts Legal Resources - March 22, 2014 at 12:35 am

Categories: News   Tags: , , , ,

Commonwealth v. Almeida (Lawyers Weekly No. 11-046-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       11‑P‑1745                                       Appeals Court   COMMONWEALTH  vs.  DANIEL D. ALMEIDA.     No. 11‑P‑1745. Bristol.     January 16, 2013.  ‑  March 27, 2013. Present:  Grasso, Berry, & Kafker, JJ.     Sex Offender.  Constitutional Law, Sex offender.  Due Process of Law, Sex offender.  Evidence, Sex offender.       Petition for civil commitment filed in the Superior Court Department on July 15, 2009.   The case was heard by Robert C. Cosgrove, J.     Harry L. Miles for the defendant. Mary O’Neil, Assistant District Attorney, for the Commonwealth.     KAFKER, J.  In this case, we address an issue raised but not resolved in Commonwealth v. Suave, 460 Mass. 582 (2011) (Suave).  In Suave, the court held that civil confinement as a sexually dangerous person (SDP) under G. L. c. 123A (statute) cannot be based, as a general rule, on the likelihood of noncontact sexual offenses alone.  See id. at 588.  But the court further stated that such noncontact offenses may be committed in a menacing manner that satisfies the statutory requirements if they will “objectively put [a] victim in fear of bodily harm by reason of . . . a contact sex crime.”  Ibid.  Mindful of the Supreme Judicial Court’s admonition that we must undertake a “fact specific” inquiry, we further define here what it means to be an SDP who is a “menace to the health and safety of others” pursuant to G. L. c. 123A.  Id. at 588-589.  More particularly, we consider whether the defendant’s “predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.”  Id. at 588.  We conclude that his predicted sexual offenses and associated conduct — which do not involve contact sex crimes, but are much like his past crimes that involved stalking-like behavior and breaking and entering into another person’s home for the purpose of voyeurism or exhibitionism — will instill such apprehension.  We therefore conclude that the defendant’s commitment as an SDP satisfies the requirements of the statute and substantive due process.  We affirm the decision of the trial court.   Legal background.  Pursuant to G. L. c. 123A, the Commonwealth may petition to commit an individual to the treatment center for sexually dangerous persons (treatment center) for an indefinite period of time, subject to periodic review, upon a showing that he is an SDP.  See Commonwealth v. Bruno, […]

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Posted by Massachusetts Legal Resources - March 27, 2013 at 6:17 pm

Categories: News   Tags: , , , ,